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The Water Environment (River Basin Management Planning: Further Provision) (Scotland) Regulations 2013

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PART 2SRIVER BASIN MANAGEMENT PLANNING

Setting of environmental objectivesS

3.—(1) The objectives set under section 9(1)(a)(i) (environmental objectives) of the Act must, subject to the application of regulations 5 to 10 [F1and 17]

(a)for surface water—

(i)prevent deterioration of the status of each body of surface water;

(ii)protect, enhance and restore each body of surface water (other than an artificial or heavily modified body of surface water) with the aim of achieving good surface water status by 22nd December 2015;

(iii)protect and enhance each artificial or heavily modified body of surface water with the aim of achieving good ecological potential and good surface water chemical status by 22nd December 2015; and

(iv)aim to progressively reduce pollution from priority substances and aim to cease or phase out emissions, discharges and losses of priority hazardous substances;

(b)for groundwater—

(i)prevent the deterioration of the status of each body of groundwater;

(ii)prevent or limit the input of pollutants into groundwater M1;

(iii)enhance and restore each body of groundwater, and ensure a balance between abstraction and recharge of groundwater, with the aim of achieving good groundwater status by 22nd December 2015; and

(iv)reverse any significant and sustained upward trend in the concentration of any pollutant resulting from the impact of human activity in order to progressively reduce pollution of groundwater; and

(c)in addition, for each area and body of water falling within section 7(4) (protected areas) of the Act, achieve compliance with any standards and objectives required by or under any [F2[F3assimilated] law] described in that section by 22nd December 2015, unless otherwise specified in the [F4[F3assimilated] law] by virtue of which the area or body of water is protected.

(2) Where two or more of the objectives set pursuant to paragraph (1) apply to the same body of water, to the extent that any of those objectives conflict, the most stringent is to apply.

Designation as artificial or heavily modified bodies of surface waterS

4.—(1) SEPA may designate a body of surface water as artificial or heavily modified when—

(a)the changes to the hydromorphological characteristics of the body of surface water, which would be necessary for achieving good ecological status, would have significant adverse effects on—

(i)the wider environment;

(ii)navigation, including port facilities, or recreation;

(iii)activities for the purposes of which water is stored, such as drinking water supply, power generation or irrigation;

(iv)water regulation, flood protection, land drainage; or

(v)other equally important sustainable human development activities; and

(b)the beneficial objectives served by the artificial or modified characteristics of the body of surface water cannot, for reasons of technical feasibility or disproportionate costs, be achieved by other means which are a significantly better environmental option.

(2) Where SEPA designates a body of surface water as artificial or heavily modified, it must—

(a)mention the designation, and the reasons for it, in the river basin management plan for the river basin district within which that body is located (or the next update of it); and

(b)review the designation when reviewing and updating the river basin management plan.

Environmental objectives: phased achievementS

5.  The deadline by which an environmental objective set pursuant to regulation 3(1) must be achieved may be extended for the purposes of the phased achievement of the environmental objectives for a body of water (including the objectives for areas falling within section 7(4)(d) (areas designated in respect of water status) of the Act for the protection of habitats or species), if the following conditions are met—

(a)no further deterioration occurs in the status of the affected body of water;

(b)SEPA determines that all necessary improvements in the status of the body of water cannot reasonably be achieved within the timescales set out in regulation 3(1) for at least one of the following reasons—

(i)the scale of improvements required can only be achieved in phases exceeding the timescale, for reasons of technical feasibility;

(ii)completing the improvements within the timescale would be disproportionately expensive;

(iii)natural conditions do not allow timely improvement in the status of the body of water;

(c)extensions are limited to a maximum of two updates of the first river basin management plan (except in cases where the natural conditions are such that the environmental objectives cannot be achieved within that period);

(d)the river basin management plan (or the next update of it) sets out—

(i)the extension of the deadline, and explains the reasons for it;

(ii)a summary of the measures to be applied to achieve the environmental objectives set pursuant to regulation 3(1) which are envisaged as necessary to bring the body of water progressively to the required status by the extended deadline; and

(iii)the reasons for any significant delay in making these measures operational, and the expected timetable for their implementation; and

(e)a review of the implementation of the measures referred to in paragraph (d) and a summary of any additional measures is included in updates of the river basin management plan.

Environmental objectives: human activity or natural conditionS

6.  Less stringent environmental objectives may be set under section 9(1)(a)(i) of the Act for a specific body of water instead of those required pursuant to regulation 3(1) when that body of water is so affected by human activity or its natural condition is such that the achievement of the environmental objectives required pursuant to regulation 3(1) would be infeasible or disproportionately expensive, and the following conditions are met—

(a)the environmental and socio-economic needs served by such human activity cannot be achieved by other means which are a significantly better environmental option not entailing disproportionate costs;

(b)where the specific body of water is a body of surface water, the highest ecological and chemical status possible is achieved, given impacts that could not reasonably have been avoided due to the nature of the human activity or pollution;

(c)where the specific body of water is a body of groundwater, the least possible changes to good groundwater status, given impacts that could not reasonably have been avoided due to the nature of the human activity or pollution;

(d)no further deterioration occurs in the status of the affected body of water; and

(e)the establishment of less stringent environmental objectives, and the reasons for it, are set out in the river basin management plan (or the next update of it) and those objectives are reviewed every 6 years.

Environmental objectives: natural cause or force majeureS

7.  For the purposes of these Regulations and Part 1 of the Act (in particular section 9(7)(a) (environmental objectives required to comply with Article 4 and 7 of the Water Framework Directive)), a temporary deterioration in the status of a body of water is not a breach of the environmental objectives set pursuant to regulation 3(1) if the deterioration is the result of circumstances of natural cause or force majeure which are exceptional or could not reasonably have been foreseen, or the result of circumstances due to accidents which could not reasonably have been foreseen, and the following conditions are met—

(a)all practicable steps are taken—

(i)to prevent further deterioration in the status of the body of water; and

(ii)so as not to compromise the achievement of the environmental objectives for any body of water not affected by the circumstances;

(b)the conditions under which circumstances that are exceptional or that could not reasonably have been foreseen may be declared, including the adoption of the appropriate factors, are stated in the river basin management plan (or the next update of it);

(c)the measures to be taken under such exceptional circumstances are included in the programme of measures to be applied to the body of water and will not compromise the recovery of the quality of that body of water once the circumstances are over;

(d)the effects of the circumstances that are exceptional or that could not reasonably have been foreseen are reviewed annually and, subject to the reasons set out in regulation 5(b) all practicable measures are taken with the aim of restoring the body of water to its status prior to the effects of the circumstances as soon as reasonably practicable; and

(e)a summary of the effects of the circumstances and of such measures taken or to be taken in accordance with paragraphs (a) and (d) are included in the next update of the river basin management plan.

Environmental objectives: modifications to physical characteristicsS

8.  For the purposes of these Regulations and Part 1 of the Act (in particular section 9(7)(a)), a failure to achieve good groundwater status, good ecological status or, where relevant, good ecological potential, or to prevent deterioration in the status of a body of surface water or a body of groundwater is not a breach of the environmental objectives set pursuant to regulation 3(1) if the failure is the result of new modifications to the physical characteristics of the body of surface water or alterations to the level of the body of groundwater, and the following conditions are met—

(a)all practicable steps are taken to mitigate the adverse impact on the status of the body of water;

(b)the reasons for the modifications or alterations are of overriding public interest and/or the benefits to the environment and to society of achieving the environmental objectives are outweighed by the benefits of the new modifications or alterations to human health, to the maintenance of human safety, or to sustainable development;

(c)the beneficial objectives served by the modifications or alterations of the water body cannot for reasons of technical feasibility or disproportionate costs, be achieved by other means, which are a significantly better environmental option; and

(d)the reasons for the modifications or alterations are set out and explained in the river basin management plan (or the next update of it) and the environmental objectives are reviewed every 6 years.

Environmental objectives: sustainable human development activitiesS

9.  For the purposes of these Regulations and Part 1 of the Act (in particular section 9(7)(a)), a failure to prevent deterioration from high status to good status of a body of surface water is not a breach of the environmental objectives set pursuant to regulation 3(1) if the failure is the result of new sustainable human development activities, and the following conditions are met—

(a)all practicable steps are taken to mitigate the adverse impact on the status of the body of water;

(b)the activities are of overriding public interest and/or the benefits to the environment and to society of achieving the environmental objectives are outweighed by the benefits of the activities to human health, to the maintenance of human safety, or to sustainable development;

(c)the beneficial objectives served by those activities cannot for reasons of technical feasibility or disproportionate costs, be achieved by other means, which are a significantly better environmental option; and

(d)the nature of the activities are set out and explained in the river basin management plan (or the next update of it) and the environmental objectives are reviewed every 6 years.

Environmental objectives: application of regulations 4 to 9S

10.  Regulations 4 to 9 must not be applied in a way that—

(a)permanently excludes or compromises the achievement of the environmental objectives set in relation to any other body of water within the same river basin district; or

(b)is inconsistent with the implementation of any [F5[F6assimilated] law relating to the environment].

Waters used for the abstraction of drinking waterS

11.  For each body of water identified under section 6(1) (bodies of water used for the abstraction of drinking water) of the Act, the programme of measures for the river basin district within which the body of water is located must ensure the necessary protection of the body of water with the aim of avoiding deterioration in the quality of that body of water in order to reduce the level of purification treatment required in the production of drinking water.

Content of monitoring programmeS

12.—(1) Each monitoring programme prepared under section 8(2) (monitoring programme) of the Act must—

(a)enable a coherent and comprehensive overview of the status of the water environment within each river basin district;

(b)for surface water—

(i)cover the volume and level or rate of flow to the extent relevant to ecological status (or, where relevant, ecological potential) and chemical status;

(ii)cover the ecological status (or, in the case of an artificial or heavily modified body of water, ecological potential) and chemical status; and

(iii)enable the classification of each body of surface water in accordance with Annex V to the [F7Water Framework Directive];

(c)for groundwater—

(i)cover monitoring of the chemical and quantitative status;

(ii)enable a reliable assessment of the groundwater status, including assessment of the available groundwater resource; and

(iii)enable the detection of any long-term anthropogenically induced upward trend in the concentration of any pollutant; and

(d)for protected areas (within the meaning of section 7(3) (protected areas) of the Act)—

(i)cover any supplementary monitoring required by the legislation under which the area is protected; and

(ii)provide for the monitoring of any body of water identified under section 6(1) of the Act which provides more than 100 m3 per day of drinking water intended for human consumption.

(2) SEPA must ensure that monitoring for purposes of any programme prepared under section 8(2) of the Act is carried out in accordance with Annex V to the Water Framework Directive.

Preparation of programme of measuresS

13.—(1) Each programme of measures must include the following measures (as further specified and qualified by Article 11(3) of the Water Framework Directive) M2

(a)measures required [F8under [F9assimilated] law] for the protection of water;

(b)measures deemed appropriate for the purposes of regulation 15;

(c)measures to promote an efficient and sustainable water use to avoid compromising the achievement of the environmental objectives set pursuant to regulation 3(1);

(d)measures to meet the requirements of regulation 11 and those of Article 7(2) (waters used for the abstraction of drinking water) of the Water Framework Directive;

(e)controls over the abstraction of fresh surface water and groundwater, and impoundment of fresh surface water;

(f)controls over the artificial recharge or augmentation of any body of groundwater, including a requirement for prior authorisation;

(g)for point source discharges liable to cause pollution, a requirement for prior authorisation;

(h)for diffuse sources liable to cause pollution, measures to prevent or control the input of pollutants;

(i)for any other significant adverse impacts on the status of water identified under section 5 (characterisation) of the Act, measures to ensure that the hydromorphological conditions of each body of water is consistent with the achievement of the required ecological status or good ecological potential for any artificial or heavily modified body of surface water;

(j)a prohibition of direct discharges of pollutants into groundwater, except that the reinjection into the same aquifer of water used for geothermal purposes may be authorised and the following discharges may also be authorised (with conditions)—

(i)injection of water containing only substances resulting from operations for exploration and extraction of hydrocarbons or mining activities, and injection of water for technical reasons, into geological formations—

(aa)from which hydrocarbons or other substances have been extracted; or

(bb)which, for natural reasons, are permanently unsuitable for other purposes;

(ii)reinjection of pumped groundwater from mines and quarries or associated with the construction or maintenance of civil engineering works;

(iii)injection of natural gas or liquefied petroleum gas for storage purposes into—

(aa)geological formations which, for natural reasons, are permanently unsuitable for other purposes; or

(bb)other geological formations where there is an overriding need for security of gas supply and the injection is such as to prevent any present or future danger of deterioration in the quality of any receiving groundwater;

(iv)injection of carbon dioxide streams for storage purposes into geological formations which, for natural reasons, are permanently unsuitable for other purposes, provided that such injection is made in accordance with [F10the [F11assimilated] law which implemented] Directive 2009/31/EC of the European Parliament and of the Council on the geological storage of carbon dioxide M3 F12...;

(v)construction, civil engineering and building works and similar activities on or in the ground which come into contact with groundwater; and

(vi)discharges of small quantities of substances for scientific purposes for characterisation, protection or remediation of a body of water limited to the amount strictly necessary for the purposes concerned,

provided such discharges do not compromise the achievement of the environmental objectives for that body of groundwater;

(k)measures to eliminate pollution of surface waters by priority substances and to progressively reduce pollution by other substances which would otherwise prevent the achievement of the environmental objectives for each body of surface water; and

(l)any measures required to prevent significant losses of pollutants from technical installations, and to prevent and/or to reduce the impact of accidental pollution incidents for example as a result of floods, including through systems to detect or give warning of such events including, in the case of accidents which could not reasonably have been foreseen, all appropriate measures to reduce the risk to aquatic ecosystems.

(2) Each programme must also include, where necessary, any other measures designed and implemented with the aim of achieving the environmental objectives set pursuant to regulation 3(1).

(3) Where monitoring or other data indicate that the environmental objectives set pursuant to regulation 3(1) for a body of water are unlikely to be achieved, SEPA must take steps to ensure that—

(a)the causes of the possible failure are investigated;

(b)any relevant permits and authorisations are examined and reviewed as appropriate;

(c)the monitoring programmes are reviewed and adjusted as appropriate; and

(d)any additional measures needed to achieve those objectives (subject to the application of regulations 5 to 10) are included in the programme of measures applying to that body of water.

(4) Each measure in a programme of measures to be applied to achieve an environmental objective, must be implemented, so far as may be applicable, by—

(a)the Scottish Ministers in exercising their functions under the relevant enactments;

(b)SEPA in exercising its functions under the relevant enactments; and

(c)each responsible authority in exercising its designated functions.

[F13(4A) In implementing any measure pursuant to paragraph (4), the Scottish Ministers, SEPA or a responsible authority, as the case may be, must—

(a)ensure that the application of measures taken pursuant to paragraph (1) does not lead directly or indirectly to increased pollution of surface waters;

(b)take all appropriate steps not to increase pollution of marine waters; and

(c)periodically review and, where necessary, update the controls, requirements or measures in paragraph (1)(e) to (i).]

(5) Each programme of measures, in so far as it comprises measures to achieve an environmental objective, must be reviewed and, if necessary, updated by 22nd December 2015 and every 6 years after that.

(6) Where a programme of measures is updated under paragraph (5), any new or revised measure to achieve an environmental objective which is included in the updated programme must be implemented within 3 years of the date on which that measure was added or revised.

Content of river basin management plansS

14.—(1) In addition to the matters specified in Part 1 of schedule 1 to the Act, the river basin management plan (or the next update of it) must include—

(a)in the summary of the characterisation required by paragraph 1 of the schedule—

(i)mapping of the location and boundaries of each body of surface water;

(ii)mapping of the ecoregions and surface water body types within the river basin district;

(iii)identification of reference conditions for the surface water body types;

(iv)the reasons for the exclusion of any quality element in a surface water type from the assessment of the ecological status for that surface water type;

(v)mapping of the location and boundaries of each body of groundwater; and

(vi)a summary of the economic analysis of water use carried out in accordance with section 5(2)(c) (characterisation of river basin districts) of the Act;

(b)in the summary of significant pressures and impact of human activity on the status of the water environment required by paragraph 2 of the schedule—

(i)an estimation of point source pollution;

(ii)an estimation of diffuse source pollution (including a summary of land use);

(iii)an estimation of pressures on the quantitative status of the water environment including abstractions; and

(iv)an analysis of other impacts of human activity on the status of the water environment;

(c)along with the summary for protected areas required by paragraph 3 of the schedule, a map or maps that indicate the location of each protected area within the district and a description of the legislation under which each protected area has been designated;

(d)along with the information about monitoring required by paragraph 4 of the schedule, information in map form as to the arrangements for monitoring water status under section 8 (monitoring) of the Act and as to the results of such monitoring, including—

(i)a map of the monitoring networks established;

(ii)a map of the results regarding the status of surface water (ecological status or ecological potential, as applicable, and chemical status), groundwater (chemical status and quantitative status, in accordance with, in particular, sections 2.4.5 and 2.5 of Annex V to the Water Framework Directive) and protected areas; and

(iii)an estimate of the level of confidence and precision of the results provided by the monitoring programme;

(e)along with the list of environmental objectives required by paragraph 5 of the schedule (for each body of surface water and each body of groundwater in the district)—

(i)a list of the environmental objectives set pursuant to regulation 3(1) for each protected area in the district which is registered under section 7 (register of protected areas) of the Act; and

(ii)in addition to the information which is required to be included by regulations 5, 6, 7, 8 and 9, identification of instances where use has been made of those regulations;

(f)along with the summary of the programme required by paragraph 6 of the schedule—

(i)the ways in which the environmental objectives set pursuant to regulation 3(1) are to be achieved;

(ii)a summary of the measures required [F14under [F15assimilated] law] for the protection of water;

(iii)a report on the practical steps and measures taken to apply the principle of recovery of the costs of water services in accordance with regulation 15;

(iv)a summary of the measures taken to protect each body of water (used for the abstraction of drinking water) identified in accordance with section 6 (water used for abstraction) of the Act;

(v)a summary of the controls on the abstraction and impoundment of water (including registration and the circumstances in which exemptions from the controls apply);

(vi)a summary of the controls adopted for point source discharges and other activities with an impact on the status of water;

(vii)an identification of the cases where direct discharges to groundwater have been authorised;

(viii)a summary of the measures taken in relation to priority substances;

(ix)a summary of the measures taken to prevent or reduce the impact of accidental pollution incidents;

(x)a summary of the measures taken in relation to any body of water which is unlikely to achieve the environmental objectives set pursuant to regulation 3(1);

(xi)details of any supplementary measures identified as necessary in order to meet the environmental objectives set pursuant to regulation 3(1); and

(xii)details of the measures taken to avoid an increase in the pollution of marine waters in accordance with Article 11(6) of the Water Framework Directive;

(g)along with the information for sub-basin plans required by paragraph 7 of the schedule, a list of any other more detailed programmes and management plans for the district dealing with particular sub-basins, sectors, issues or water types, together with a summary of their contents; and

(h)along with the information required by paragraphs 9 to 11 of the schedule, a summary of the public information and consultation measures taken in connection with the river basin management plan.

(2) SEPA and the Scottish Ministers must ensure, when reviewing and updating the river basin management plan in accordance with section 14 (review) of the Act, that the plan is reviewed and updated by 22nd December 2015 and at least every 6 years after that.

(3) In addition to the matters in Part 2 of schedule 1 to the Act, updates of the river basin management plan must include, along with the summary required by paragraph 12 of that schedule, a summary of any reviews carried out under regulations 5(e), 6(e), 7(d), 8(d) and 9(d).

Fixing of charges for water servicesS

15.—(1) The Scottish Ministers must ensure—

(a)that water pricing policies provide adequate incentives for users to use water resources efficiently; and

(b)an adequate contribution of the different water uses (disaggregated into at least industry, households and agriculture) to the recovery of the costs of water services, based on the economic analysis required under section 5(2)(c) (characterisation) of the Act.

(2) In doing so, the Scottish Ministers—

(a)must take account of the principle of recovery of costs of water services (including environmental and resource costs) and in accordance with the polluter pays principle; and

(b)may have regard to the social, environmental and economic effects of the fixing of charges for water services, and to the geography and climate of the region affected.

(3) The Scottish Ministers may, in accordance with established practices, disapply paragraph (1) in relation to a particular water use activity, provided this does not otherwise compromise the purposes and the achievement of the objectives of the Water Framework Directive.

(4) If the Scottish Ministers do not fully apply paragraph (1), the reasons for not doing so must be reported in the river basin management plan (or the next update of it).

(5) In this regulation, “water services” has the meaning given in section 23(4) (definition of water services) of the Act.

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